Citation Nr: 0011812
Decision Date: 05/04/00 Archive Date: 05/12/00
DOCKET NO. 98-17 294 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUES
1. Entitlement to an increased evaluation for panic
disorder, currently evaluated as 30 percent disabling, based
on the disagreement with the April 1998 initial award.
2. Entitlement to an increased evaluation for lumbosacral
spine strain, currently evaluated as 10 percent disabling,
based on the disagreement with the April 1998 initial award.
REPRESENTATION
Appellant represented by: Montana Veterans Affairs
Division
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The veteran served on active duty from February 1992 to
January 1997. This matter comes to the Board of Veterans'
Appeals (Board) on appeal from an April 1998 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Fort Harrison, Montana.
The veteran indicated, in his VA Form 9 received in October
1998, that he wished for a Travel Board hearing to be
scheduled on his behalf. However, in subsequent
correspondence received in January 2000, he withdrew his
request for the Travel Board hearing.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained.
2. The veteran's panic disorder is manifested primarily by
daily panic attacks, hyperventilation with muscle spasms,
irritability, and sleep disturbance that impact on his
employment capabilities and cause difficulty in maintaining
affect his interpersonal relationships.
3. The veteran's lumbosacral strain is manifested by slight
limitation of motion without radiculopathy or evidence of
osteoarthritic changes.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess
of 50 percent for panic disorder have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1),
4.1, 4.7, 4.21, 4.130, Diagnostic Code 9412 (1999).
2. The criteria for an initial evaluation in excess of 10
percent for lumbosacral strain have not been met. 38
U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 4.7, 4.40,
4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295.
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
A July 1996 Medical Board Report shows that the veteran was
seen for evaluation of long standing panic attacks
accompanied by a sense of agoraphobia. He was diagnosed with
panic disorder without agoraphobia manifested by recurrent
unexpected panic attacks, persistent concern about having
additional attacks and increasing worry about the
implications of attacks. This caused disruption in his usual
occupational function. The Medical Board opined that the
veteran was unable to perform his military obligation and was
unfit for military service due to his panic disorder. His
degree of impairment was considered to be severe for military
and moderate for civilian occupational purposes.
VA treatment records, dating from January 1997 to January
1998, show that the veteran was treated for a panic disorder.
His primary complaints were feelings of anxiety, heart
palpations and sleep disturbance.
The veteran underwent VA psychiatric examination in March
1997. The psychiatric examiner noted that the veteran
complained of chest pain and profuse sweating during panic
attacks, as well as hyperventilation. He also complained of
occasional episodes of paranoia and difficulty sleeping. The
examiner diagnosed anxiety or panic disorder based on the
veteran's history and opined that the veteran's Global
Assessment of Functioning (GAF) score was 60 with moderate
symptoms and moderate difficulty in social, occupational or
school functioning.
On the basis of the available service medical records and the
March 1997 VA psychiatric examination, the RO awarded service
connection for panic attacks and assigned a 30 percent
rating, effective the day after the veteran was separated
from service. Service connection and a 10 percent rating
were also awarded for lumbosacral strain.
During the March 1997 VA orthopedic examination, the veteran
complained of low back discomfort with prolonged running,
sitting or standing. He had non-radiating low back pain when
lifting heavy objects. He walked normally and could walk
equally well forward and backwards on his heels and toes. He
could perform deep knee bending with ease. Low back flexion
was to 90 degrees, extension was greater than 30 degrees,
bilateral rotation to 90 degrees and bilateral lateral
flexion to 35 degrees with some pain and difficulty when
bending to the right. Straight leg raising was to 90 degrees
bilaterally. He could bring his knees up towards his chest,
but when he straightened them out and tried to hold them six
inches above the table while the examiner put downward
pressure on them, he experienced immediate low back pain and
spasm. X-ray studies of his lumbosacral spine were normal.
The diagnoses were paravertebral muscle spasm with myofascial
syndrome of the lumbosacral spine, and probable Facet's
syndrome of the lumbosacral strain.
In March 1998, a VA memorandum indicating the unavailability
of the veteran's service medical records and outlining the
steps taken to secure any such records was associated with
his claims folder. That same month VA notified the veteran of
the unavailability of his service medical records and
requested him to provide copies of any service medical
records he might possess or advise VA where such records
could be obtained. The veteran did not respond to this
correspondence.
Treatment records from the Indian Health Service in Fort
Belknap, Montana, dating from July 1998 to November 1998,
show that the veteran sought treatment primarily for his
diagnosed panic disorder with agoraphobia. He was also
diagnosed with post-traumatic stress and obsessive compulsive
disorders. In October 1998, the veteran was seen at the
neurology clinic with complaints of muscle spasm over various
parts of his body. The neurologist opined that the muscle
spasms were probable carpopedal spasm secondary to
hyperventilation syndrome and panic attacks.
During his October 1998 personal hearing, the veteran
testified that he experienced panic attacks approximately
three times a day that were not triggered by anything in
particular. He also experienced muscle spasms and twitches
during his panic attacks. He stated that he got dizzy during
the panic attacks and sometimes lost his balance. His wife
testified that the veteran became irritable during panic
attacks and that he "freak[ed]" out. He could be explosive
and moody during the attacks. The dosage for the prescribed
medication for his panic disorder had also increased. The
veteran experienced back pain every day, especially when
driving for long periods of time and felt a small strain with
moderate repeated lifting. He was unable to pick up his
children and wore a back brace purchased by Indian Health
Service, his employer. The veteran's wife testified that his
back pain radiated down the backs of both his legs, half way
down his thighs. The veteran was employed on a full-time
basis at the time of the hearing and had missed only one day
of work when he sought emergency treatment for a panic
attack. He felt that his problems had gotten progressively
worse.
October and November 1998 neurology evaluations, conducted by
Lowell R. Quenemoen, M.D., indicate that the veteran's muscle
spasms were a result of his panic attacks and episodes of
hyperventilation with carpopedal spasm.
Indian Health Service treatment records, dating from November
1998 to August 1999, show continued treatment for panic
attacks with complaints of sleep disturbance and
irritability. A May 1999 treatment record indicates that the
veteran reinjured his back and complained of back pain.
Flexion of the low back was to 90 degrees. His back strength
was normal and his deep tendon reflexes were 1+ and
symmetrical. Sensation was intact to pinprick and touch.
The veteran was diagnosed with recurrent lumbosacral strain
and panic attacks.
A November 1998 VA orthopedic examination report shows the
veteran's complaints of off and on low back pain,
particularly with prolonged sitting or flexion/extension of
the back. He denied any radiation of the pain. The veteran
wore a Velcro lifting belt at work and while driving to
ameliorate the pain. He rarely took medication and had not
missed any work as a result of his low back pain. The
examiner observed that the veteran a normal gait with full
range of motion in his back. There were no complaints of
pain with range of motion testing and no palpable spasms
along the musculature of the spine. Lying and sitting
straight leg raises were negative, with full lower extremity
strength and bilaterally equal reflexes and light sensation
was intact. The examiner's impression was a history of back
strain and noted that the examination was unremarkable.
At the time of his November 1998 VA psychiatric evaluation,
the veteran stated that he had stopped his antianxiety
medication and noticed a resultant increase in his panic
attacks. He reported daily attacks that lasted approximately
45 minutes. The examiner found his mental status examination
to be essentially unremarkable. His affect was full ranging
and appropriate, his underlying mood tense, but within normal
limits and there was no impairment of concentration or
attention span. His memory was functionally intact and his
thinking was logical and goal oriented. The examiner
diagnosed panic disorder without agoraphobia and gave the
veteran a GAF of 65. The examiner opined that his disorder
did impact on his work but not to the degree that he could
not be employed and did not reduce his social functioning.
In a May 1999 evaluation, Dr. Quenemoen noted that the
veteran had reinjured his back and was seen on follow-up for
back pain. At that time low back flexion was to 90 degrees,
extension was described as fair in lateral function.
Neurological testing revealed good bulk, tone and reflexes.
His reflexes were 1+ and symmetrical without any pathological
reflexes. Sensation was normal for pinprick and touch. The
veteran's gait was normal and he could toe and heel walk, as
well as tandem walk. His coordination was intact. Dr.
Quenemoen opined that the veteran had recurrent lumbosacral
strain with no evidence of radiculopathy. The veteran was to
continue using Robaxin; however, the physician felt he would
be able to discontinue it in the near future.
A May 1999 VA memorandum again indicating the unavailability
of the veteran's service medical records and outlining the
steps taken to secure any such records was filed in the
veteran's claims folder. VA again notified him of the
unavailability of his service medical records and requested
him to provide copies of any service medical records he might
possess or advise VA where such records could be obtained.
The veteran did not respond to this correspondence.
Analysis
A veteran's assertion of an increase in severity of a
service-connected disorder constitutes a well-grounded claim
requiring the VA fulfill the statutorily required duty to
assist 38 U.S.C.A. § 5107(a) (West 1991) because it is a new
claim and not a reopened claim. Proscelle v. Derwinski, 2
Vet. App. 629, 632 (1992).
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), and these ratings are based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155.
The veteran's claims for higher evaluations for a panic
disorder and lumbosacral strain are original claims that were
placed on appellate status by a notice of disagreement
expressing disagreement with an initial rating award. At the
time of an initial rating, separate ratings can be assigned
for separate periods of time based on the facts found, a
practice known as "staged" ratings. Fenderson v. West, 12
Vet. App 119 (1999).
Panic Disorder
The veteran is currently assigned a 30 percent evaluation for
his panic disorder. Under 38 U.S.C.A. § 4.130, Diagnostic
Code 9411, a 30 percent disability rating is appropriate when
there is occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). A 50 percent
rating is assigned when there is occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped, speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short and long term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent is for assignment when there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking or mood, due to such symptoms as: Suicidal
ideation; obsessional rituals, which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as provoked
irritability, with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work, or work-like setting); inability to establish and
maintain effective relationships. 38 C.F.R. § 4.130,
Diagnostic Code 9412 (1999).
A review of the evidence of record shows the veteran's
subjective reports of sleep disturbance and irritability, as
well as muscle spasms due to hyperventilation. He continues
to live with his wife and children and is employed. The
November 1998 VA examiner opined that the veteran's panic
disorder had not reduced his social functioning. However
private medical records suggest that the veteran has panic
attacks more often than once a week. The November 1998 VA
examiner noted that the veteran had daily panic attacks, and
the evidence suggests that his sleep is disturbed by panic
attacks on a regular basis. The attacks have caused physical
problems (muscle spasms due to hyperventilation). Given this
evidence, the Board concludes that the veteran's disability
picture more nearly approximates the criteria required for a
50 percent rating. 38 C.F.R. § 4.7. Therefore, a 50 percent
rating is in order, effective January 6, 1997. Inasmuch as
the veteran is not shown to have suicidal ideation;
obsessional rituals, which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant; near
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as provoked irritability, with
periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work, or work-like
setting), he does not meet the criteria for a 70 percent
rating.
Lumbosacral Strain
The veteran's lumbosacral strain is currently evaluated as 10
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code
(Code) 5295. A 10 percent rating is assigned when there is
characteristic pain on motion. A 20 percent rating is
warranted with muscle spasm on extreme forward bending and
unilateral loss of lateral spine motion in the standing
position.
In this case, despite the March 1997 finding of low back pain
and muscle spasm when raising his legs against resistance,
there is no evidence of muscle spasm with forward bending.
Moreover, the findings show only slight limitation of motion,
if any, no deformity of the spine and no evidence of
osteoarthritic changes of the lumbosacral spine or joint
space changes. Accordingly, the Board does not find that the
disability picture more nearly approximates the 20 percent
criteria under Code 5295. 38 C.F.R. § 4.7.
There are other diagnostic codes for evaluating the spine
that provide a rating greater than 10 percent. However,
there is no evidence of vertebral fracture, Code 5285,
ankylosis, Codes 5286 and 5289, or neurological symptoms
associated with intervertebral disc syndrome, Code 5293. See
Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the
Board's choice of diagnostic code should be upheld so long as
it is supported by explanation and evidence).
The veteran's low back disability could be evaluated under
Code 5292, limitation of motion of the lumbar spine, which
provides for a 20 percent rating when limitation of motion is
moderate. As discussed above, the VA examination reports
show only slight limitation of motion, if any, in all planes
and is not so restricted as to represent moderate disability
requiring the assignment of a 20 percent rating. 38 C.F.R. §
4.7.
The Board notes that, when an evaluation of a disability is
based on limitation of motion, the Board must also consider,
in conjunction with the otherwise applicable diagnostic code,
any additional functional loss the veteran may have sustained
by virtue of other factors as described in 38 C.F.R. §§ 4.40
and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
Such factors include more or less movement than normal,
weakened movement, excess fatigability, incoordination, pain
on movement, swelling, and deformity or atrophy of disuse.
The most recent VA examination reports indicate that there
was evidence of some pain with bending to the right in March
1997 with no evidence of functional loss as a result and no
discomfort or pain at the time of the November 1998
examination. The veteran did not complain of weakness,
fatigability or incoordination and there is no objective
evidence of such at the time of his examinations.
Considering the limitation of motion with pain on motion, the
Board does not conclude that the veteran's disability picture
more closely resembles the severity required for a rating
greater than 10 percent. 38 C.F.R. §§ 4.7, 4.40, 4.45;
DeLuca, 8 Vet. App. at 206.
In addition, as discussed above, the Board finds that an
extra-schedular rating is not warranted in this case. 38
C.F.R. § 3.321(b)(1). Again, there is no evidence of
hospitalization or unemployment as a result of his panic
disorder or lumbosacral strain.
The Board notes that, although the veteran has appealed an
initial decision for his panic disorder and lumbosacral
strain, the current disability ratings are effective to the
date he submitted his claims. The evidence of record does
not indicate that the current disability levels are less
severe than any other period during the veteran's appeal. As
there appears to be no basis for considering staged ratings
in this case, a remand to the RO for that purpose would serve
no purpose and only delay consideration of the veteran's
appeal.
ORDER
Entitlement to an initial rating of 50 percent for panic
attacks is granted, subject to the regulations governing the
award of monetary benefits.
Entitlement to an initial rating in excess of 10 percent for
lumbosacral strain is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals